Landstra v. Bunn

• Decision Date: 19 June 1911
• Parties: LANDSTRA v. BUNN.
• Court: New Jersey Supreme Court

80 A. 496

81 N.J.L. 680

LANDSTRA

v. BUNN.

Court of Errors and Appeals of New Jersey.

June 19, 1911.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by Dirk S. Landstra against Lillian B. Bunn. Judgment for defendant, and plaintiff brings error. Affirmed.

Riker & Riker, for plaintiff in error.

Robert D. Reynolds, for defendant in error.

VOORHEES, J. Arising out of a written contract for the erection of a dwelling house, a suit was brought by Landstra, the contractor, against Bunn, the builder and owner, the object of which was to recover damages for being prevented from completing the contract by the alleged unlawful discharge of the plaintiff, and also for a recovery for extra work and labor bestowed upon the building. The trial resulted in a nonsuit, and the propriety of that judicial action comes under scrutiny by means of this writ of error.

Considering first the claim for extra work, which the testimony showed had been performed solely upon the verbal order of the defendant, no written order having been given either by the owner or architect, we have concluded that the nonsuit was correct on this phase of the case.

The contract, after stating "that the work included in this contract is to be done under the direction of the said architects," also contained the following provision: "Art. III. No alterations shall be made in the work except upon the written order of the architects; the amount to be paid by the owner or allowed by the contractor by virtue of such alterations to be stated in said order. Should the owner and contractor not agree as to the amount to be paid or allowed, the work shall go on under the order required above, and in case of failure to agree, the determination of said amount shall be referred to arbitration," etc. The specifications attached to and made a part of the contract contained a similar provision, as follows: "Should the owner at any time desire any variations in the work as planned and specified, or any additional work, the contractor shall execute such variations or extra work only on the written order of the architects, specifically stating the character of the variations or extra work and the prices thereof. The architects will not audit or recognize any bills for extra work not so ordered by them in writing," etc. The plaintiff argues that, the extra work having been verbally ordered and actually done, it was properly chargeable against the owner, who, in order to escape payment for it, should have been required to establish to the satisfaction of the jury that the work had not been done on his order, and that he had not waived the requirements of the contract. It may be conceded that parties to a contract are at liberty subsequently to contract differently in variation of the original contract. But that question is not here involved. Where persons contract with each other, regarding what shall be their course of conduct with each other concerning a certain subject-matter, and declare that there shall be no change in their agreement which shall visit additional liability in favor of or against the other without authority for so doing in writing, the mere performance of extra service without such written authority will not give rise to an implied waiver of provisions of the contract in that respect. While the acceptance of a benefit usually raises an implied promise to pay for it, yet there are instances where such inference will not arise; a notable one being the rendition and acceptance of services by members of a household to each other. Disbrow v. Durand, 54 N. J. Law, 343, 24 Atl. 545, 33 Am. St. Rep. 678. So in the case in hand, without proof of alteration in the contract by the parties, or express proof of waiver of its terms, the plaintiff, in order to recover, was bound to produce the order of the architects stipulated for in the agreement. The ordering of the extra work by the defendant without written order must not be construed as evincing an intention to alter or vary the contract; but rather that such action was to be taken in conformity with its terms. This court in Sheyer v. Pinkerton Construction Co., 59 Atl. 462, where the effect of similar provisions was passed upon, speaking by Mr. Justice Reed, said: "But it is...